On the Supreme Court: Heroes, Soldiers, Burkeans, Mutes

Monday

Sep 30, 2013 at 12:01 AMSep 30, 2013 at 8:45 PM

(c) 2013, Bloomberg News.

(c) 2013, Bloomberg News.

As the Supreme Court prepares to begin its new term, observers have been discussing the familiar divisions among the justices. Judicial activism is opposed to judicial restraint, liberalism is opposed to conservatism, and those who believe in an evolving or "living" Constitution are opposed to those who believe that the document's meaning was fixed when its provisions were originally ratified.

But if we look over the arc of the court's history, we will quickly uncover another division. For more than two centuries, the court's members have adopted one of four roles and self- presentations that define their work. These constitutional personas are Heroes, Soldiers, Burkeans and Mutes.

Heroes are entirely willing to invoke the Constitution's broad principles to invalidate state and federal legislation. In sharp contrast, Soldiers defer to, and seek to uphold, the actions of elected officials. Burkeans emphasize the importance of traditions and precedents; they favor modest, incremental changes. Mutes like to remain silent. They prefer not to speak to controversial questions.

The most important constitutional problems, including those that the court will face this term, involve heated conflicts among the four personas.

Over the course of U.S. history, the court has had many Heroes. (I am using the term as a description, not as an evaluation; Heroes can make big mistakes.) Chief Justice Earl Warren wrote the court's opinion in Brown v. Board of Education, which struck down school segregation; he was unquestionably Heroic. Indeed, the era of the Warren court was one of rampant Heroism. Invalidating poll taxes, forbidding mandatory school prayer and requiring one-person-one-vote, the justices interpreted constitutional provisions to require large-scale social reforms.

The Warren court was to the left of center, but Heroes exist on the right as well. In the first third of the 20th century, we can find Heroism in the Four Horsemen, who voted to strike down minimum-wage and maximum-hour legislation (and ultimately threatened Franklin Roosevelt's New Deal): Pierce Butler, James Clark McReynolds, George Sutherland and Willis Van Devanter.

Citizens United v. Federal Election Commission, which invalidates certain campaign-finance restrictions, ranks among the court's most Heroic rulings in recent years. In 2013, the leading example of Heroism is Shelby County v. Holder, in which the justices stuck down an important provision of the Voting Rights Act.

The defining feature of the judicial Soldier is a willingness to defer to the will of his or her superiors, typically understood as the political branches of government. Justice Oliver Wendell Holmes liked to adopt the role of the Soldier, as reflected in his famous suggestion: "If my fellow citizens want to go to Hell I will help them. It's my job."

In the late 1930s and through the 1940s, most justices acted as Soldiers, usually upholding the acts of Congress and state governments. But Soldiering can be found in every era, including our own. Arguing on behalf of the Voting Rights Act last term, Justice Ruth Bader Ginsburg wrote a powerful dissent in defense of the Soldier. In the same week, Justice Antonin Scalia did something similar in arguing that the court should uphold the Defense of Marriage Act.

Burkeans — following the great social theorist Edmund Burke — don't much like either Heroes or Soldiers, because they favor small, cautious steps, building humbly and incrementally on the decisions and practices of the past. On the Warren court, Justice Felix Frankfurter was sometimes a Burkean, rejecting large, soaring rulings in favor of more modest ones.

Burkeanism has played a significant role in recent years. In its narrow 2013 decision in Fisher v. University of Texas, striking down a particular affirmative-action program without pronouncing broadly on affirmative-action programs, the justices took an unmistakably Burkean posture.

Mutes are even more modest than Burkeans, because they prefer to say nothing at all. No judge can be consistently quiet, of course, and so Mutes are infrequent players in the constitutional drama. But they have had an exceedingly important place in U.S. history.

Probably the most prominent example of Muteness came in 1955, when the Supreme Court refused to pronounce on the constitutionality of restrictions on racial intermarriage. And just last term, Chief Justice John Roberts wrote the court's decision dismissing, on technical grounds, a challenge to a California law banning recognition of same-sex marriage, ensuring that the court would remain mute on that sharply contested issue (at least for now).

This term, the court will face an assortment of high-stakes issues. Can Congress impose restrictions on the aggregate amount that individuals can give to political campaigns? Does a state have the power to forbid public universities and schools from adopting affirmative-action programs? Can a local legislature require its meetings to start with a prayer? When may the president make recess appointments?

We don't know how the justices will answer these questions. But on one point, we can rest assured: Heroes, Soldiers, Burkeans and Mutes will be playing significant roles.

_ Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of "Nudge" and author of "Simpler: The Future of Government."